On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-2933-95.
Before Judges Baime, Newman and Axelrad.
The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this medical malpractice case, the podiatric surgeon, Dr. Thomas Vitale, appeals from the trial court's denial of his motion for a new trial and denial of his motion for remittitur of the jury award for future lost wages.*fn1
He also seeks a remand for an amended form of judgment limiting the date from which pre-judgment interest must be calculated in accordance with a prior order. Plaintiff, Linda McRae, in a cross-appeal, argues that the trial court's remittitur of the award for past lost wages and for pain and suffering constituted an abuse of discretion.
We affirm in part, reverse in part, and remand on the issue of pre-judgment interest. The judge's opinion supports her order of remittitur of the jury's award of past wage loss and denial of remittitur of the award of future loss of income. It does not, however, support her order of remittitur of the jury's non-economic damages award.
On March 14, 1993, plaintiff was seriously injured when she slipped on ice and snow while working as a security guard at the Newark Housing Authority. She was transported to St. Michael's emergency room and diagnosed with a "significantly displaced tibia (shinbone) fibula (calf bone) fracture" of her right leg. This type of fracture is severe and problematic because of the lack of circulation in that area, which may hinder bone healing or result in loss of a limb. Knowing this, Dr. Parker, the resident on duty, attempted a closed reduction of plaintiff's leg, which procedure was unsuccessful.
Plaintiff required surgery. St. Michael's on-call orthopedist did not respond. Defendant, a licensed podiatrist, went to the hospital and diagnosed plaintiff with a comminuted fracture of the tibia and fibula. The fracture was spiral in nature and traveled completely down and adjacent to the articular surface of the ankle. According to defendant, the bones "exploded from within," similar to the way a plate shatters when it is dropped on a hard-surface floor. Defendant planned to perform an open reduction and external fixation. To do so, he required a large and small fragment set consisting of an internal plate and external fixation device. Defendant testified that he inquired of the operating room staff whether the proper medical hardware was available, and someone told him it was.
Defendant started the surgery without having personally verified the reliability of the medical hardware. Plaintiff was placed under anesthesia. Defendant isolated the area of the leg for surgery, made an incision for the operation, and realigned the fractured bone using pins, clamps and manual manipulation. He then applied a plate as an internal fixation device to add stability to the fracture. The next step was to apply and position the external fixator. However, the external fixator supplied by the staff was too large, and St. Michael's did not have another complete external fixator set available.
Defendant's plans changed in the midst of the operation. He believed that stabilization of the leg was critical, so he continued with the surgery using a "pin and plaster" technique. Since the pins were in place, he used the cast as a rudimentary external fixator and finished the surgery. Plaintiff remained hospitalized from March 14, 1993 through March 31, 1993.
Plaintiff continued to treat with defendant. A subsequent x- ray examination of plaintiff revealed that the plates had shifted since the operation. Defendant decided to perform another open reduction to achieve more compression in the area, and elected not to use an external fixator. Instead, he performed the open reduction with a larger internal fixation plate. Plaintiff was hospitalized from April 20, 1993 through May 4, 1993.
Defendant continued to treat plaintiff at least four times a month. During these treatments he advised her that there was angulation of the fracture. Defendant instituted in-home physical therapy for plaintiff and adopted a wait-and-see plan to determine whether further procedures were required to correct the alignment. Plaintiff underwent physical therapy from April to September 1993. At the direction of her worker's compensation carrier, plaintiff consulted with Dr. Anthony E. Stefanelli, an orthopedic surgeon. On September 28, 1993, Dr. Stefanelli examined plaintiff and took x-rays of her leg. He determined plaintiff had a malunion of the fractured tibia and fibula. He explained: "[T]he bones didn't join together the way they were supposed to. They were angulated and were not [in] . . . good anatomical alignment."
Plaintiff related Dr. Stefanelli's opinion to defendant, but continued to see Dr. Vitale because she trusted him. She treated with him until the later part of January 1994, when through her worker's compensation carrier, she was referred to an orthopedic surgeon, Dr. William Oppenheim.
Dr. Oppenheim examined plaintiff on March 8, 1994, and determined that there was "marked varus alignment," i.e., an inward turning of the bones. He also observed a one centimeter discrepancy in plaintiff's limb length. Plaintiff would undergo three surgeries with Dr. Oppenheim and various other procedures to correct plaintiff's angulation and discrepant limb length.
Plaintiff underwent her first surgery with Dr. Oppenheim on March 30, 1994. Dr. Oppenheim removed the medical hardware from plaintiff's leg, performed a fibula osteotomy, a tibial corticotomy, and applied an Ilizarov external fixator to the right leg. The Ilizarov external fixator provides a doctor with control of the bone fragments so that the doctor can change the angulation by rotating the lower leg through the use of different hinges. Plaintiff was hospitalized from March 30, 1994 until April 7, 1994 for this surgery.
On May 16, 1994, Dr. Oppenheim performed further surgery to remove the angular correction hinges and replaced them with derotational hinges. On June 9, 1994, he replaced those hinges with a lengthening system known as "clickers."
On June 24, 1994, plaintiff fell and fractured her left leg when her crutch broke. She underwent surgery at the emergency room of St. Barnabas Medical Center and was hospitalized from June 24, 1994 until July 12, 1994. During that time, Dr. Oppenheim also made corrections to the Ilizarov device. Plaintiff required a wheelchair because her legs were not capable of bearing weight.
Dr. Oppenheim saw plaintiff on a monthly basis between July and October 1994. During that period, plaintiff progressed from being confined to a nursing home to walking with a quad cane. He instructed plaintiff to continue with physical therapy. On October 17, ...